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Housing Bulletin No 11 – Section 21 Notices

Welcome to this, the eleventh bulletin from the Housing Team.

We hope that you will find the content of interest: if you wish to receive further updates you can subscribe by replying to housing@42br.com

Sections 33 to 40 of the Deregulation Act 2015 (‘the Act’) introduce significant changes to the way in which assured shorthold tenancies (ASTs) operate from 1 October 2015. Note that these provisions apply only to new ASTs, ie. those granted after 1 October 2015 (not statutory periodic ASTs which arise after this date consequent upon ASTs which were originally granted prior to this date). From 1 October 2018, the rules will affect all ASTs. These rules apply in England, not Wales.

  1. Section 33 is intended to prevent ‘retaliatory eviction’, ie. the situation where a tenant genuinely complains about disrepair and the landlord responds by serving a notice under section 21 (l) (b) or (4) (a) of the Housing Act 1988 (‘a s21 Notice’). To begin with, a s21 Notice is of no effect where a local housing authority has already served an Improvement Notice of Notice of Emergency Action under the Housing Act 2014 (‘a Relevant Notice’): after which, broadly, there is a 6 month embargo on s21 Notices. Further, in certain situations, a s21 Notice will also be rendered invalid when it is served before a Relevant Notice: the conditions are that – the tenant must make a written complaint; the landlord does not then respond satisfactorily (eg. giving a s21 Notice); and, the tenant then complains to the local housing authority which serves Relevant Notice. There is a number of exemptions to this general rule and, notably, private registered providers of social housing are exempted (s34(6)).
  2. Section 35 now removes the need for a s21 Notice, served under section 21(4)(a), to comply with the requirement that it must expire on the last date of a period of the AST. Two months notice is all that will be needed.
  3. Section 36 provides, broadly, that a s21 Notice cannot be served in the first 4 months of an AST (but this rule does not apply to statutory periodic AST or a replacement AST) Does this make it impossible to terminate an AST on the last day of a 6 month fixed term?
  4. Section 36 also introduces a rule that a possession claim relying on a s21 Notice cannot be issued more than 6 months after the date on which it was served. However, where section 21 (4)(b) requires that the date given in the notice is more than 2 months after the date of service, proceedings based on such a s21 Notice cannot be issued more than 4 months after the date on which the s21 Notice was served.
  5. Section 37 authorises the Secretary of State to prescribe a form of s21 Notice. This has taken place (after one failed attempt: S1 2015/1646, see now S1 2015/1725). Note the prescribed notice applies only to ASTs granted after 1 October 2015 (not statuary periodic assured tenancies which arise after this date consequent upon tenancies which were originally granted prior to this date).
  6. Section 38 prevents a s21 Notice being given where a landlord is in breach of a ‘prescribed requirement’. Here, the new Regulations (S1 2015/1646) provide: (i) A valid energy performance certificate (under Regulation 6(5) of the Energy performance of Buildings (England and Wales) Regulations 2012 must be given to the tenant: the timing of this is unclear but it is advisable to do this before the grant of the AST; and (ii) A record of any gas safety check (ie under Regulation 36 of the Gas Safety (Installation and use) Regulations 1998) at the premises must be given to every tenant (note: the general 28 day period for compliance is dispensed with for this purpose) and, in particular, a copy of the last record made must be given to any new tenant of premises to which the record relates before that tenant occupies those premises.
  7. Section 39, similarly, invalidates a s21 Notice given where a landlord has failed to provide ‘prescribed information’. The new Regulations (S1 2015/1646) define this information as the Department for Communities and Local Government booklet entitled ‘How to rent: the checklist for renting in England’. So, this must always be given to the tenant before serving a s21 Notice. If the booklet is updated during the AST, the new booklet does not need to be provided to the tenant but, the new booklet must be provided to a tenant who has taken a replacement AST after the date on which the booklet was updated.
  8. Section 40 provides that a landlord must repay to a tenant any portion of the rent which was paid in advance for a period where a s21 Notice terminates the AST before the end of that period and that tenant has left.
    For this now advising their clients about the grant of ASTs, careful attention – in particular – should be paid to paragraphs 3,6 and 7 above.

Desmond Kilycone is a member of the 42 Bedford Row Property Team and specialises in all aspects of Housing Law.

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10.11.2015